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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINAUNITED STATES OF AMERICA ::v. : No. 1:08CR384-1:DEMARIO JAMES ATWATER :
MOTION TO DISMISS BECAUSE OF DISCRIMINATION IN THE DECISION OFTHE UNITED STATES ATTORNEY GENERAL TO AUTHORIZE THE UNITED STATES ATTORNEY TO SEEK THE DEATH PENALTY AND FOR DISCOVERY OFINFORMATION PERTAINING TO THE GOVERNMENT’S DECISION TO CHARGE THEDEFENDANT AND PURSUE THE CASE CAPITALLY
DEMARIO JAMES ATWATER, by and through his undersigned legalcounsel, Assistant Federal Public Defender Gregory Davis andAttorney Kimberly C. Stevens, does hereby move this Honorable Courtfor an order dismissing this action because the decision of theUnited States Attorney General to authorize the United StatesAttorney for the Middle District of North Carolina to charge Mr.Atwater and seek the death penalty was arbitrary and race-based, inviolation of the Fifth and Eighth Amendments to the United StatesConstitution, and in the alternative to grant limited discoverywith respect to his claim of selective authorization. In support ofthis motion, Mr. Atwater shows the following to the court:INTRODUCTIONDefendant DeMario James Atwater, by and through hisundersigned counsel, contends that the United States AttorneyGeneral acted with discrimination when he authorized local
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prosecutors to seek the death penalty in this case. Specifically,Defendant contends that the death penalty was authorized because heis a black male accused of murdering a white female. Asdemonstrated herein, Defendant has presented some evidence tendingto show that the Attorney General’s decision to authorize the deathpenalty has a discriminatory effect and was made with adiscriminatory intent. See United States v. Armstrong, 517 U.S.456, 468 (1996), United States v. Olvis, 97 F.3d 739, 743 (4th Cir.1996). Defendant has presented relevant, credible statisticalevidence demonstrating that the Attorneys General under PresidentGeorge W. Bush were far more likely to authorize the death penaltyin cases involving white, female victims as compared to all othercases presented for review. Such findings constitute evidence ofboth discriminatory effect and discriminatory intent.Accordingly, Defendant’s motion for discovery in support of hisclaim of selective authorization of the death penalty should begranted.ARGUMENTDefendant’s claim – that the United States Attorney Generalimpermissibly authorized the death penalty in this case based onDefendant’s race and gender as well as the race and gender of thevictim – is essentially a selective prosecution claim against theUnited States Attorney General and the Department of Justice.Defendant has also submitted a motion to dismiss and/or for
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discovery on his claim of selective prosecution against the UnitedStates Attorney for the Middle District of North Carolina (Doc.141) which adopted and incorporated herein by reference; however,different evidence will be presented in support of this motion andtherefore two separate motions have been filed.In this motion and memorandum, Defendant will briefly outlinethe Department of Justice’s death penalty authorization process,reiterate the most relevant legal concepts for a selectiveprosecution claim, and present evidence of both discriminatoryeffect and intent.A.THE UNITED STATES ATTORNEY GENERAL, AFTER CONSULTATION WITHDEPARTMENT OF JUSTICE ATTORNEYS, MAKES THE FINAL DECISIONREGARDING WHETHER A CAPITAL SENTENCE SHOULD BE SOUGHT IN ACASE.Sections 9-10.010 et seq. of the United States Attorneys'Manual sets out the Department of Justice (DOJ) protocol forcapital case review. “The protocol requires United StatesAttorneys to submit cases involving a pending charge of an offensefor which the death penalty is a legally authorized sanction,regardless of whether or not the U.S. Attorney recommends seekingthe death penalty.” U.S. Dep’t of Justice, The Federal DeathPenalty System: Supplementary Data, Analysis and Revised Protocolsfor Capital Case Review (2001). After reviewing prosecutionmemorandums, copies of indictments, written materials submitted bydefense counsel in opposition to the death penalty, and any othersignificant documents and evidence, the Capital Case Unit of the
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